the mystery of law: a critical analysis of h.l.a hart’s
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The Mystery of Law: A Critical Analysis of H.L.A Hart’s The The Mystery of Law: A Critical Analysis of H.L.A Hart’s The
Concept of Law Concept of Law
Stephen Mark Gray II
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The Mystery of Law: A Critical Analysis of H.L.A Hart’s The Concept of Law
By
Stephen Gray
A thesis submitted to the faculty of The University of Mississippi in partial
fulfillment of the requirements of the Sally McDonnell Barksdale Honors
College.
Oxford
May 2020
Approved by
___________________________
Advisor : Professor William Berry
___________________________
Reader: Professor Robert Westmoreland
___________________________
Reader: Professor Steven Skultety
2
©2020
Stephen Gray
ALL RIGHTS RESERVED
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Acknowledgments
First, I would like to sincerely thank Dr. William Berry, under whom this
thesis was drafted. He was an indispensible help in improving the ideas and the
language, and in giving me the resources that I needed to make this thesis happen.
He also helped me learn that ideas are not sacred lambs, but they should be
offered up freely to criticism so they can become better. He was patient and
steadfast, and I am very grateful.
Also, I must thank the entire philosophy faculty at the University of
Mississippi. My liberal arts education here not only taught me how to think, but
also instilled in me a passion for it that will hopefully never die. In the course of
my studies, I had the pleasure of studying under all the dedicated teachers in the
department, two of whom are my second and third readers. To Dr. Skultety and
Dr. Westmoreland, I wish to say thank you for doing what you do. I would not
have studied philosophy if not for great professors like you.
I am thankful for Michaela Watson who was there nearly every moment of
writing this thesis to encourage me when I felt my ideas were no good, to let me
know when they really were no good, and to be a light in my life when I felt like
all the light had gone out. Finally, thank you to my family who gave me the
opportunity to study at this university and the friends who helped me become who
I am along the way.
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ABSTRACT
STEPHEN GRAY: The Mystery of Law: A Critical Analysis of H.L.A Hart’s The
Concept of Law
(Under the direction of Dr. William Berry)
This thesis explores the role of morality in law through a critical
examination of the work of one of the most widely cited and renowned judicial
scholars, H.L.A. Hart. His modified theory of positivism, which denotes that law
and morality are separable and that legal rules may have any content, has had an
enduring impact on the landscape of judicial thought in the last century. As Hart’s
work has had an indelible hand in shaping analytical jurisprudence and as it
exemplifies the antithesis of my argument, it will serve as a theoretical foil. From
it, I hope to articulate my own concept.
After critically examining Hart’s conception of the legal system as a
construct motivated solely by survival and guided solely by rules, I proffer my
own conception of the legal system based upon the teleology of law and the
natural conditions of human dignity. With this natural law theory based around
human dignity, I hope to introduce a new way of looking at legal systems, not as
purely logical concepts but as complex and storied enterprises of human will.
I should note that theorists such as Lon Fuller and Ronald Dworkin have
taken great strides in reintroducing moral facts into the concept of law. Below, I
will extensively cited Fuller’s detailed critiques of the supremacy of the rule. The
principle that he chooses as the central content of natural law is “open
communication by which men convey to one another what they perceive, feel, and
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desire.”1 This precept, I believe, is not expansive enough to justify all of the moral
facts that pervade our system. As we will see in the following sections, I have
expanded the principles of substantive natural law under the aegis of human
dignity. I have offered a concept of dignity that better fits how we generally think
and talk about Law, how embedded moral facts truly are in our legal system, and
how morality operates in the day-to-day trenches of judicial interpretation. We
have also borrowed the concept of the principle, as it was defined and heralded by
Ronald Dworkin. He famously touted judicial interpretation as “moral from the
ground up,” just as much a product of principles as of rules. Like Fuller, however,
he stops short of introducing a fully fleshed natural content of law. Dworkin
primarily cites principles as an interpretive concept and as sources of law. We
shall do this too, but we are going further in saying that the law, all of it, satisfies
and reproduces some elements of morality. This thesis would surely not be
possible without their insight. Along the way, I will explore the essential links
between morality and law, the role of moral principles in judicial decision-
making, and the shared human values that I believe make law possible.
1 Lon Fuller, The Morality of Law, (New Haven, Yale, 1964), 186.
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TABLE OF CONTENTS
INTRODUCTION I: ……………………………………………………………6
CHAPTER II: HART’S LEGAL POSITIVISM…………………………………8
i. What are rules?
ii. The Unfitting Simplicity of the Primary/Secondary Rule
Distinction
iii. The Rule of Recognition
iv. Transfer of Power
v. Proposals to Save the Rule of Recognition
CHAPTER III: MORALITY AND LAW……………………………………….18
i. Hart & Morality
ii. The Teleology of the Legal System
iii. A Revised Content of Natural Law
CHAPTER IV : MORAL INTERPRETATION…………………………………27
i. Occasions for Moral Judgment in Legal Interpretation
ii. Principles & The Model of Rules
iii. The Source of Principles
CONCLUSION V :………………………………………………………………41
BIBLIOGRAPHY………………………………………………………………..44
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And that is why Justice often seems to be the most excellent of the virtues, with the
result that “ neither the evening star nor the morning star is so wondrous,” and
as the proverb says, “ in justice is all virtue summed.”
Aristotle, Nicomachean Ethics
I. Introduction
In the juristic world, positivism has enjoyed an era of unprecedented
popularity. The model of rules that endorses the separability of law and morality
proffered by H.L.A. Hart in his Concept of Law has served as the locus of
analytical jurisprudence for almost a century. Throughout that time, legal theorists
have admired or derided the Positivist doctrine, writing extensively to advance it
or to dismantle it. One thing is certain; Hart’s work has not yet released its
tendrils from the central judicial debates of our time. It will be the contention of
this thesis that many of the problems and persistent questions that we now face in
the field of jurisprudence owe themselves to legal positivism’s simplistic
conception of rules. To represent this position, we are choosing The Concept of
Law, as it is the definitive text of positivism and a statement of the central tenets
that have defined the doctrine since.
This doctrine has given ammunition to a view of Law that inflates the
importance of rules, leading to uninspired semantic arguments about the meaning
of the meaning of words. Crucially, it abhors the talk of values that is so crucial to
discussions of justice in this country. Further, I believe it gives credence to a
mechanistic approach to interpretation that robs the law of its dynamic force. If
the law is nothing but a collection of binding legal rules, then as its practitioners,
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we have little leverage to say that some rules are better than others. We have no
platform in a theory of law as mere social facts, to make judgments of which laws
are just or fair or worthy of propagation. Moral facts are the kind, in this nation’s
history, that continually light the way towards a more perfect system. These are
the facts that light the imagination and enable us to right our legal wrongs. We are
seeking to show that interpretation solely within the realm of rules stifles the
intellectual craftsmanship that makes law a living, changing phenomena. Though
in some cases, these misconstructions bear little resemblance to Hart’s original
thesis, they are often symptomatic of a larger theoretical problem. This, I posit,
has its roots in the positivist conception.
This theoretical problem contains two propositions. First, the model based
around primary and secondary rules and their distinction is too simplistic to
accommodate the robust reality of law. Secondly, the separability of law and
morality in jurisprudence is not only a mistake, but it belies the true nature of law
in practical judicial decision-making.
The landmark hard cases that have defined our system were decided with
the very moral facts that Hart seeks to discount. It is no coincidence that legal
rights in this country have been continually modified and expanded. This was not
merely to suit the moral vogue of the day, but as a result of a system aspiring
towards a moral goal, often failing, but always aspiring. This is the function of
morality in Law; this is what we are seeking to explain.
I will begin by sketching a skeleton of Hart’s thesis and his model of
primary and secondary rules. Then, I shall examine how the distinction raises
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more questions than it answers, and in doing so, flesh out Hart’s thesis and its two
major theoretical flaws. The final part of this thesis will be an evaluation of the
link between morality and interpretation, where we will demonstrate the
importance of the moral principle in jurisprudence.
It is important to disclaim that my intention here is rather modest. I do not
aim to discredit Hart’s conception of law in whole, but only to chart the blind
spots in his central thesis and point to a better avenue for examining law. Hart
himself lists his primary aim as “clarification of the general framework of legal
thought, rather than a criticism of law or legal policy,”2 and the mere fact that his
general framework still ignites debate in the field of analytical jurisprudence is an
obvious sign of his success. One might be hesitant to read a clarification of a
clarification, but I believe that this is the work of legal philosophy, to inch slowly
forward to the brightest truths at the heart of the mysterious force that is law. As
we will see, the legal system is one with many aims, and we are poised to achieve
a better one if we can identify and acknowledge them.
II. Hart’s Legal Positivism
Because we are beginning by examining Hart’s framework of the law, we
shall begin by focusing on its indispensible central aspect: the rule, but first, it
would do us well to remind ourselves why we are examining Hart’s framework at
all. As briefly mentioned above, it is the most credible explanation of the legal
system through social facts alone. Hart does this by proffering a system of rules,
which have a very definitive character and function within the framework. I
2 H.L.A. Hart, The Concept of Law, (Oxford University Press, London), Preface.
10
believe that showing the inconsistencies within this framework and the ways in
which explanation by rules alone contradicts what we typically think and say
about the law is the most meaningful demonstration of the vital need for moral
facts. The problems raised within Hart’s model in this section will give credence
and legitimacy to the shift that I will propose in later sections to looking at the
legal system as an enterprise of human will with ultimately moral ends.
Now, we will examine the distinction between primary and secondary rules
and begin by sketching that model. Hart’s mission here is to list the salient
features of a legal system, to determine the minimum characteristics that produce
legality. It is important to note that he has already done much to distinguish his
own positivism from previous conceptions, by defining what fails to reproduce
those salient features. He has strayed from the conception of law as an order
backed by threats, as this kind of obligation differs crucially from statutory
obligation in applying only to others and not to those who enact the statutes.
Further, he has made a preliminary distinction between laws conferring powers
and those conferring obligations. Lastly, he has discredited analysis solely in
terms of a sovereign, as this fails to account for the modern constitutional state,
where the seeming dual-sovereignty of the electorate and of the legislature makes
it so the sovereign is unidentifiable. Analysis in these terms has proved too simple
to accommodate the vital concept of the rule, which Hart believes any legal
system must rely. The most salient feature of a legal system then, is its rules. The
essential character of the law, then, is to subject a population to rules. As we shall
see, Hart will run afoul of the same criticism that he levels at his forebears.
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Analysis in terms of the rule will prove too simple to explain the most vital
functions of the law.
(i) What are rules?
Hart views the rule as the coercive currency of law. Rules impose general
obligations by which they aim to maintain conformity. Embedded into this
concept of the rule is the sanction, by which deviation from a general obligation
meets punishment by the ruling authority. The rule, conceived of in this sense, is
the primary rule. These alone cannot constitute a legal system and indeed, they
need not even be legal, but any developed legal system will surely contain them.
A system composed solely of these kinds of rules, however, which Hart would
describe as primitive, suffers the deficiencies of being uncertain, static, and
inefficient. 3
For any system to attain legality, it must operate concurrently on another
set of rules, which Hart calls secondary rules. These rules are ones that exist
above, and govern, primary rules of obligation. The secondary rule alleviates the
deficiencies of a solely primary system by designating the ways in which a
primary rule is to exist. This multi-faceted concept of the secondary rule gives a
system the ability to definitively determine primary rules, change them, and to
adjudicate whether they have been broken and which sanctions shall apply. The
coalescing of these functions, and the sole determinate of a fully formed legal
system, Hart calls the “rule of recognition.” The union of primary and secondary
rules, then, becomes “the heart of a legal system,” and “a most powerful tool for
3 Hart,The Concept of Law, (Oxford, Oxford University Press, 1961) 90-93.
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the analysis”4 of legal theory. Legality so defined is a logical quality, achieved
only by those systems that maintain a rule of recognition. Though we have only
begun to scratch the service of Hart’s thesis, it is fitting that we test the utility of
this model as an analytical tool to determine whether rules alone could plausibly
serve as the heart of a legal system.
(ii) The Unfitting Simplicity of the Primary/ Secondary Rule Distinction
Hart treats the distinction roughly sketched above as a logical necessity of
a developed legal system, and any system that exists without distinguishing
primary and secondary rules is no legally valid system at all. Lon Fuller illustrates
in The Morality of Law the over-simplicity of that notion in imagining a ruler
“Rex,”5 to which all of his subjects have pledged loyalty in writing, a clear
invocation of the rule of recognition. Here, this rule of recognition and the
distinguishing of primary and secondary rules, however, cannot account for the
tacit limits on his power.
For example, Rex’s power derives totally from the rule-conferring power
in the written declarations of his subjects. Yet, if his subjects depose him for
abusing his office, it would not be in nullity of the rule of recognition, but rather a
sanction visited upon him for abandoning the implicit limits of his power. Plainly
stated, the rule of recognition presented in this simple example, the written
declaration granting power to Rex, becomes a primary rule, when Rex is
overthrown for exceeding the limitations of his kingship. The only way to
preserve the neat distinction between primary and secondary rules is to either say
4 Hart, The Concept of Law, 94.
5 Fuller, The Morality of Law, 138.
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that there are no tacit limits to Rex’s power, which leaves us with the uneasy
notion that his authority cannot be revoked. This would imply that the system that
his subjects put up in the place of Rex’s kingship is not legally valid, or at least
not in the way that the kingship was. Or, we must admit that the line between
primary and secondary rules is ambiguous and that it is possible to withdraw the
power granted in a rule of recognition, either expressly or by implication.
The problem with distinguishing primary and secondary rules as starkly as
Hart does is that it leaves no room in the equation for tacit limitations on Rex’s
power. As a juristic construction, Hart’s model of rules might provide a very neat
and orderly conception of law, but it cannot possibly account for the robust reality
of any real system with the weight of history behind it. There is an important
aspect of the legal system here that Hart’s construction ignores: reciprocity. Any
construction of a legal system expressed only in terms of obligation is bound to
leave the real world phenomena of reciprocity behind.
Not only is there is a gradient of power moving downward, from the given
authority to its subjects, but also there is a gradient of power moving up, from the
population to the given authority. Bound by the expectation of his subjects that
certain rights shall be respected, Rex is only authorized a certain range of
authoritative action. Of course, these expectations may be very low, depending
upon the political morality of a particular system.
Peasants in 13th
century England, for instance, might not have expected full
franchise (although the evidence of peasant uprisings certainly indicates that they
did), they would have, however, expected a minimal respect for their customs and
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ways of life. If these were not respected, and the peasant population had the force
to challenge the accepted authorities, then the system would no longer remain
viable. The reciprocal relationship between authority and subject need not be one
rested on violence, either. In today’s world, reciprocal action against authorities
exceeding tacit limitation might include protest, apathy, or outright refusal to
participate in the system, all damaging the legitimacy and functionality of the
legal system. That a regime might have managed in the past to keep hold of power
in spite of abandoning the reciprocity of the power gradient serves only to prove
this point further. These regimes rested on the most severe forms of repression,
typically lasted only a short time, and always ended in spectacular displays of
political purge and violence.
(iii) The Rule of Recognition
When we attempt to apply Hart’s model to a more complex and storied
system like our own, the rule of recognition nearly collapses. In fact, “law,” in the
sense described by Hart, exists in our own system at thousands of points, subject
to thousands of different interpreters, conferring power in thousands of different
contexts. Primary rules imposing duties are often contained within power
conferring rules and vice versa. Hart only attempts to apply this tool of analysis to
the English parliamentary system, but if we are to believe that the rule of
recognition is a logical necessity of a developed legal system, his observations
should hold across the two cases.
It is worth asking, here, what is the rule of recognition in the United
States? The Constitution, which provides the skeleton of our government, confers
15
powers to the judicial branch to interpret and arbitrate legal disputes, and provides
conditions under which a rule proves valid, seems a fitting candidate. If a rule of
recognition could be found in this country, it is likely to be there, but the
ambiguity and complexity of the Constitution belie Hart’s attempts to condense
the rule of recognition to a minimal feature of the system. He concedes that in a
case like this one, where “an authoritative text provides the clearest identification
of a rule of recognition,”6 there may be considerable uncertainty as to what
constitutes a criterion in identifying a valid rule of the system. This he chalks up
to the inherent “open texture” of laws, meaning that they fall to the discretion of
its practitioners. He does not, however, list the open texture of laws as a salient
feature of a legal system, but only as an interpretive feature. Presumably, a system
may endure without such discretion. In any case, Hart does not conjecture a way
in which the rule’s practitioners might use that discretion. Still, if practitioners are
bound solely by the standards set by the authority, then there is really no
discretion to be had. They can only pick apart previous rules, which will bring
them no closer to identifying a new, valid rule. If they are not bound solely by the
rules of the given authority in identifying valid rules, then it seems that rules have
lost the force of obligation and become meaningless.
One of the defining features of Hart’s argument is that it avoids the
dreaded trap of claiming that law is purely a matter of force. Hart derides the
conception of Law as “orders backed by threats.” This, he says, would render the
law no different from a gunman ordering you to surrender your wallet. However,
it seems to be his assertion that in the case of England, the rule of recognition may
6 Hart, The Concept of Law, 111.
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be condensed to the simple statement, “Whatever the Queen enacts in Parliament
is law.”
Then are we to believe that in the United States, “Whatever the legislature
enacts in accordance with The Constitution” is “an adequate expression of the rule
as to the legal competence” of the legislature, and “is accepted as the ultimate
criterion for the identification of law?”7 Of course, there are other sources of Law
in our system, and Hart insists that they may be reduced to this simple form. The
validity of any source of the law, in any locality, however cumbersome, can be
expressed in the form of the statement quoted above. For instance: “Whatever the
city council enacts as a regulation in accordance with its charter, in accordance
with the state’s constitution, in accordance with the laws of the federal legislature,
in accordance with the Constitution is an adequate expression as to the legal
competence of the city council and is the ultimate criterion for the identification
of law in the city.”
This presents an interesting problem. If a mere statement of social fact is
to be the ultimate rule of recognition, by which all the complexities and
conventions of our system are absorbed, then we are committed to a rather
uninformative, non-descript account of what constitutes law. Thus, the rule of
recognition, in casting such a wide arc by which it indicates the sources of law,
becomes a tautology. We have then reduced the legal system, in all its brilliant
complexity, to “Whatever the supreme lawmaking power designates as valid is
law, unless otherwise proved invalid.” To put it simply, the law is the law,
because the authority has decreed that it is valid. For all the work that Hart has
7 Fuller, The Morality of Law, 145.
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done to separate himself from “the gunman situation writ large,” we have arrived
at largely the same conclusions. Without sacrificing vital characteristics of our
legal system, there cannot be one, neat expression of the rule of recognition.
(iv) Transfer of Power
Now that we have seen that primary and secondary rules are not always
distinct and that the rule of recognition cannot be reduced to a single source, it
would do us well to explore another way that the rule of recognition fails to
adequately describe the complexities of a legal system. According to Hart,
embedded within the rule of recognition, along with all the other complexities of a
legal system, are the rules for the lawful transfer of power. The rule of recognition
recognizes the office, not the regime, so that legally valid transfer of power is
always contained within it. Hart calls this the “persistence of law.” The
experience of history, however, proves that this is not always the case. Leaving
aside instances of coup, the lawful transfer of power is not always facilitated by a
rule of recognition and in some cases operates totally beyond it.
One of the saving features of Hart’s concept is its account for the transfer
of power, all supposedly baked into the rule of recognition. While this analysis
might apply very neatly to a succession of rhetorical “Rexes,” it has very little
explanatory power when it comes to a living, fully fleshed system. In the United
States, for instance, unique since its inception in its stable transference of power,
we have seen instances where presidential elections ignore any secondary rule, let
alone a rule of recognition (if there is one to be found).
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The Compromise of 1876 presents us with a fascinating case. By informal
dealing, Samuel Tilden and the Democratic Party yielded the presidency to
Republican Rutherford B. Hayes in exchange for an end to the reconstruction and
a full withdrawal of the North from Southern states. What is the rule of
recognition by which, on Hart’s account, this transfer of power must be explained
as a logical necessity of any legal system? It hardly seems right to say that it is the
legal enactments of the legislature, as the campaigns ignored the codified electoral
processes. Likewise, it seems equally absurd to say that it was the compromise
itself, a handshake agreement reached in backrooms with no regard for the results
reached by the supposed rule of recognition.
If we are to treat the rule of recognition as Hart does, as a “most powerful
tool of analysis,” it is essential that it accommodates or at the very least indicates
these kinds of shifts of power. Fuller diagnoses this central failure of the concept
of the rule of recognition as an attempt “to give neat juristic answers to questions
that are essentially questions of sociological fact.”8 Then, we are left with a tool
that cannot be used. If the rule of recognition is not the logical necessity that Hart
describes, it becomes a simplistic and uninformative construction that does not fit
reality.
(v) Proposals to Save the Rule of Recognition
Some positivist scholars have tried to save the rule of recognition in this
regard, expanding it to nearly ridiculous proportions so that it might fit the myriad
complexities of the United States legal system. To show how wide an arc must be
8 Fuller, The Morality of Law, 141.
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cast to absorb all the complexities of our system and how unambiguous and
uninformative the rule must then be, I will describe one such proposal below.
First, we must abandon the simplistic conception that the legal
competence and the supreme authority of determining a valid rule can be reduced
to one secondary rule or one bunch of such rules. We must acknowledge that
lawmaking bodies change, sometimes slowly and sometimes drastically. Further,
we must acknowledge that this change may unknowingly shift the rule of
recognition over time, so that in one era it might enshrine some standards of
validity and then later, others. Positivists like Kent Greenawalt and Kenneth Hima
have tried to revive the rule of recognition as an analytical tool in the United
States with little success. They parcel out specific provisions of each article of
The Constitution, as some serve as one-time secondary rules and others shifting
between rule-types depending on the legal context. They show, at the very least,
that the rule of recognition cannot be reduced to the one, elegant statement of
social fact. Ultimately, they fall into the familiar trap of being essentially non-
informative. These attempts show not only that the rule of recognition cannot
exist in the form that Hart proposes, but also that the impulse among legal
philosophers to crystallize the complexities of Law into convenient and orderly
constructions is pervasive and far-reaching.
If the rule of recognition, as shown above, is insufficient in proving itself a
logical necessity of a legal system and the distinction between primary and
secondary rules unsatisfactory in describing the realities of law as a living force,
then what are to make of Hart’s methodology? He seeks to describe law as a
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manifested social fact, in virtue of its minimally salient features, but this question
leads to uninformative descriptions and brings us no further than explanation by
orders backed by threats. Perhaps, “What is Law?” is not the question that we
should be asking.
A more informative methodology may begin by understanding the ends of
Law, its objectives, and its significance to those who engage in it. This would lead
us not to ask what Law is, but rather what Law aspires to be. To answer this
question, it is true that we must examine the nature of rules and their contents, but
we could not form a complete answer from these desiderata alone. To answer an
aspirational question of this kind, we must look deep into the inner morality of
law, from where that morality springs, and the essential links between statutes and
their moral content.
Social facts lead us only so far in assessing the functions of law and answering
the questions that we have raised above. They paint an incomplete picture, and as
we will see, moral facts can fill those gaps. Asking questions about the aspirations
of law allows us to examine the moral facts underlying our system, and in so
doing, better understand it. Answering the aspirational question will also lead us
to the most valuable insight of this thesis, that the natural content of law is
profoundly expansive and eludes explanation by social facts alone.
III. Morality and Law
(i) Hart and Morality
While Hart concedes that law and morality intersect at thousands of points,
that law is an enterprise with some moral ends, and that it relies upon the
21
conventional morality of its subjects to supply its justificatory force, he denies the
necessary truth “that laws reproduce or satisfy certain demands of morality.”9 To
illuminate the positivist thesis that law and morality are separable, Hart juxtaposes
the position of the legal positivist to a convenient foil: classical conceptions of
natural law. He reduces those conceptions to this rather neat definition: “that there
are certain principles of human conduct, awaiting discovery by human reason,
with which man-made law must conform if it is to be valid.”10
According to Hart, the “fatal blow” dealt to the natural law concept is its
confusion of law as description and of law as prescription. This concept relies on
the Greek notion that every fixture of nature aims at its “telos,” its logical end and
optimal state. As natural fixtures aim toward their logical ends, so must
humanity’s legal contrivances. This teleological conception presupposes that
man-made laws operate in the service of some objective good, aiming to enshrine
particular principles of human conduct. In this way, the laws that explain the
course of nature exist in the same sense as laws that sanction human behavior.
Thus, the central fallacy of natural law is contained in the confusion of the
phrases: “You are bound to report for military service,” and “It is bound to freeze
if the wind goes round to the north.”11
The first statement is prescriptive, making
a particular demand of human behavior. The second is merely descriptive, based
upon observations of the course of nature. According to Hart, the practitioner of
natural law is mistaken in assuming that the same kinds of descriptive laws, which
9 Hart, The Concept of Law, 181.
10 Ibid., 182.
11 Ibid., 183
22
govern nature, also govern humanity. In other words, it is mistaken to suppose
that there is a natural, optimal end at which legal societies aim.
If we are to show that it is a necessary truth that human laws satisfy certain
demands of morality, we must meet the hurdle of Hart’s criticisms above and
propose a more logically consistent theory of natural law that fits with what we
typically think and say about it. The key to meeting this criticism and to
answering the question of Law’s aspirations lies in the inherent teleology of our
legal system, of which even Hart acknowledges. If we can show that the telos, or
end, of law is moral or morally aimed, we should find ourselves in the position of
having to admit that laws reproduce and satisfy standards of morality.
(ii) The Teleology of the Legal System
Hart begins by listing what he terms the “minimum content of Natural Law,”12
adapting certain “obvious truisms” about the connections between law and
morality. These minimal criteria must be “universally accepted principles of
conduct which have a basis in elementary truths concerning human beings, their
natural environment, and aims.”13
He admits that any viable legal system must
aim at maintaining these principles to persist. According to Hart, the telos, or the
fundamental end at which law aims, is survival. The natural fact of human
fragility is the “reason why…law and morals should include a specific content.”14
According to Hart, survival is the central element to human legal society. It is
the sole aspect of the human condition, which informs the moral contents of the
law. From humanity’s desire to survive, we can extrapolate certain brute facts
12
Hart, The Concept of Law, 189. 13
Ibid., 189. 14
Ibid., 189.
23
about the state of human life upon which the minimal content of natural law rests.
Hart reduces these to five characteristics: human vulnerability, approximate
equality, limited altruism, limited resources, and limited understanding or strength
of will. For each of these aspects of human life, there are corresponding minimal
contents that must be satisfied by laws. He contrasts this Hobbesian view of
human striving motivated by survival with the “more grandiose and challengeable
constructions”15
which have been proffered under the name of Natural Law.
Let us begin with Hart’s presumption that the minimal natural content of Law
is driven solely by humanity’s wish to survive. This very well may have been true
in Hobbes’ time, when theocratic monarchies were the height of legality, but in
our time, it seems odd to assert that even the basest function of the legal system is
to facilitate human survival. A person might say in hard times that they “are
struggling to survive,” but it is laughable to suppose that a modern state with the
sole constitutional function of saving its subjects from bodily attack would be a
viable system at all. In fact, it even seems odd to suppose that even a system that
granted “approximate equality” or any other of these minimal contents would
remain viable for very long. Beyond this barebones construction, owing to the
fragility of human existence, Hart posits that law may have any content, subject to
the legislative whims of the authoritative power. In reality, we expect much more
from our Courts. In this country, we rely on laws to educate our children, provide
healthcare to the sick, and to dispense rights, which we view as an inalienable
product of the inherent dignity of human life. These are the criteria we might
15
Hart, The Concept of Law, 189.
24
actually use in determining whether a system has reached a certain degree of
legality.
Despite what Hart says, expanding the teleology and the minimal natural
content of the Law does not have to come at the cost of the metaphysical
speculation that he is so eager to avoid. For example, we do not need to postulate
some platonic ideal of a legal system or the existence of some divine governor to
suit an expanded view. Some proposals, such as Lon Fuller’s, are rather prudent,
but the implications that they hold profoundly change our understanding of the
connections between law and morality.
Fuller proposes that the “purpose of the institution of law is a modest and
sober one, that of subjecting human conduct to the guidance and control of
general rules.”16
At first blush, this may seem like Hart’s point restated, however
it differs crucially from the Positivist view in that the “guidance and general
rules” listed here are not the logically necessary constructions Hart supposes. This
frees us from concerning ourselves solely with logical validity.
With this simple restatement, valid legal rules are no longer exhaustive of the
law. Rather, the “guidance” is the product not only of rules, but also of moral
arithmetic, of principles. This grants us the flexibility to better examine law’s
natural contents, unencumbered by the analytical problems that we met with
Hart’s concept of rules. When we abandon legal analysis in terms of logical
validity or as manifested social fact, which we have seen in the previous sections
to be a non-informative and dubious tool, we are on new ground, where legality is
not all-or-nothing but comes in degrees. A system is neither valid nor invalid, but
16
Fuller, The Morality of Law, 146.
25
successful or unsuccessful. This revised teleology might cost us the parsimony
and precision of Hart’s construction, but as we shall explore in the next section, it
leaves us better poised to explain everything that law does, what it means to those
who engage in it, and how it operates in the day-to-day trenches of judicial
interpretation.
(iii) A Revised Content of Natural Law
First, we can easily resolve the ambiguity between descriptive and
prescriptive laws, which Hart believes is the “fatal blow” to the theory of Natural
Law. I suspect that this kind of semantic criticism flows from certain unwarranted
assumptions that Hart makes about the universality of human values. According
to Hart, humanity’s striving is driven solely by survival, but there is little
evidence to support this kind of reductionism. Anthropology has shown us that
human beings of all cultures share much more than the desire to survive. As John
Finnis indicates in his treatise on natural rights, all human societies show some
concern for human life, truth, education, and speculative or theoretical concerns
for community, co-operation, and friendship. These are not yet practical moral
principles, but “value judgments”17
shared across all human culture, as a product
of our biology.
These descriptive laws of human behavior, for we might observe them in
one form or another in all human cultures, are the basis for our revised content of
Natural Law. Thus, it is not that the practitioners of natural law are confusing the
descriptive and prescriptive senses of Law, but rather they are acknowledging that
the descriptive laws that govern humanity reach far beyond the limits that
17
John Finnis, Natural Law & Natural Rights, (New York, Oxford University Press, 2011), 90.
26
positivism supposes. They are founded on a shared bedrock of human morality. In
this view, the descriptive laws that govern human behavior play a much larger
role in prescriptive lawmaking. Now that we have cleared the semantic air, we
can explore what kinds of implications come with adapting what we shall call the
new natural content of law, and the connections that it springs with morality.
As Hart has done, we have extracted the natural facts of human life to
inform our natural content of law. Where Hart’s system is motivated solely by
survival, we might say that ours is motivated by dignity. In a very direct way,
values concerning knowledge, community, and human life guide humanity’s
moral language, structure, and practice. From these pillars of the human
experience, we can deduce basic human goods for which in some form all
societies strive. Then what we mean by natural law motivated by dignity is that it
respects the condition of humanity being capable of “intelligently pursuing a
realization” of basic forms of “human goods,”18
tracing back to the universal
values common to our species. It is true that from these universal values, societies
may derive a vast variety of particular moral principles. It is also true that these
basic value judgments are not exhaustive, but they help us to comprise a spectrum
of acceptable moral and legal ends. It is not true, however, to assert that law may
contain any content. The political values of systems may differ greatly, but they
draw from the same spring of unique and shared human experience.
As scholars like Meghan Ryan have noted, dignity is a slippery concept in
jurisprudence, especially in the context of the eighth amendment. Despite being
cited continually in hard cases since the country’s inception, there have been few
18
Finnis, Natural Law & Natural Rights, 83-84.
27
attempts to precisely define the concept. Before we go any further, we need to
outline what exactly is meant by a legal system based in human dignity, how it
delimits a certain range of acceptable moral and legal content, and what that
means for a legal system overall.
Some such definitions of dignity in legal literature include the
individuality endowed to human beings by their divine creator, the respect owed
to all human beings based on their rationality, and the concept that no human
being ought to ever be used as a means to an end. Dignity is a complex, multi-
faceted concept. The definition that we have given of dignity above, as the human
capacity to strive for goods is certainly not mutually exclusive with the definitions
contained in the legal literature. There is, for instance, a dimension of rationality
contained within the prospect of human beings actively pursuing goods. It is also
evident from our definition that any legal system that uses its subjects as means to
ends would be a deficient one, and although it is not necessary, we could postulate
that this capacity was a special gift endowed by some divine governor. Meghan
Ryan chooses dignity to mean respecting the individuality of offenders and
ending utilitarian punishment. This would also be something endorsed by the
system we are proposing. At any rate, it is clear that contained in all the myriad
definitions there is a uniting thread, and this is roughly, what we mean when we
allude to human dignity. To seek a more precise definition will require an
examination of human goods, and the natural faculties that drives us toward them.
Biology grants to every human being, in some proportion, the ability to
perceive, to learn, and to communicate that learning to his or her fellows. From
28
these basic biological truths, there are birthed certain goods, from perception,
beauty; from learning, knowledge; and from communication, language and
society. Certainly, not everyone looks at a painting by Rembrandt or a lily in
bloom and feels the sentiment of beauty, but it is preposterous to suppose for that
reason that beauty does not exist. From the non-controversial existence of such
goods, which are common to all human beings, there comes the freedom to
concentrate, commit, or specialize in one or another of these basic goods, to
pursue them. This is as Finnis says, “the primary respect in which we can call
ourselves both free and responsible.”19
It is our reason, or our ability to discern between these goods and select
the ones that we hold higher above others, that guides our concentration,
commitment, or specialization in goods. It is also what renders us individuals.
However unlikely, there could conceivably be some who never strive towards any
human good. As with the example of beauty above, this does not disprove the
existence of goods. The goods are still universal in that they supply the standards
and the language by which we judge our actions. For example, we would have to
use the concept of knowledge to describe a person who never strives for it.
Reason is also the basis by which we can determine an acceptable range of
moral or legal contents, that is, what a population will allow its authorities to
subject it to by laws. Any legal system that is actively offensive to these universal,
basic goods or actively prevents a population from exercising its reason to
determine which goods to pursue is a deficient one that will survive only by
means of repression. As these goods are universal, meaning that we humans all
19
Finnis, Natural Law & Natural Rights, 101-103.
29
have the faculty to detect them, they inevitably serve as the basis for forming
particular moral principles. These principles will be the products of determining
precisely how we, not only as individuals but as a community of individuals, will
bring these goods to bear in shaping our communal worlds. Like a system that
does not respect the basic human wish of not living a short, nasty, and brutish life,
a system that abhors basic goods, or more often, manipulates those goods to
benefit only the reigning few, will inevitably fail. This is what we mean by an
acceptable range of moral and legal contents. A legal system could not
conceivably order discriminate murder on Sundays or ban acquiring knowledge or
making art, without severe human resistance. It is quite literally our nature. This
fundamental basis for Law is only a foundation. From it, custom and convention
will inevitably form different systems with diverse particulars. A certain finite
range of moral propositions, however, will bound this foundation in the following
way.
If Law, as a whole, exceeds the boundaries of this scale of accepted
morality, it will lose its coercive force and cease to remain viable, except by the
severe repression of its subjects. Therefore, to serve as anything more than “the
gunman situation writ large,” then it must reproduce and satisfy a certain
reasonable range of moral content. Here, we reach the most essential link between
morality and law. When meeting legal obligations, we are also, in a fundamental
way, meeting moral obligations. The same causal connections that drive human
morality direct and inform the ends of law, to bring about conditions that promote
human dignity.
30
We can better illustrate this central function of dignity in the framework
that we are proposing by describing the legal system in a more concrete way. To
borrow the language of planning used by Scott Shapiro, we might call what we
have chosen to call the teleology of the legal system the “master plan” of the law.
In this mode of analysis, all legal activity is a product of social planning that
occurs incrementally over time. The master plan is simply the first, general plan
that sets about the chain of sub-plans that eventually leads to the legal situation of
the moment. Using the lay example Shapiro gives, one could be sitting on the
couch and realize that they are hungry. They ask themselves if they should eat out
or cook at home. They decide on the latter, and they now have formed a plan.
Upon realizing there is little food at home, they make an addendum to the master
plan or a sub-plan. They must go to the grocery store and buy the ingredients to
make dinner, and so on, deliberating as they go, modifying the master plan of
eating at home until completion of the meal.
In our own terms, the biological condition of hunger, which was the
motivation for, and was satisfied by, the master plan represents the natural
conditions of human dignity that drive us to strive for human goods. Then, the
master plan would be the teleology of the system, designating that the system
itself reproduces conditions favorable to human dignity. The first sub-plans would
be particular moral principles, leaving open a wide array of future decisions,
which will later be arbitrated by conventions and rules.
Thus, the so-called “master plan” of the legal system is a moral one,
derived from the natural moral content of the human condition, and we find
31
ourselves once again in the position of admitting that Law and morality are
inseparable. To look at the arbitrary rules, or sub-plans, that exist within our
system, conclude that these are amoral, and therefore that the entire system is so,
is denying that law is an institution with an over-arching purpose. If we, as the
positivist does, lose ourselves in the sub-plans of the system, we are liable to
forget that there is a master rule. In other words, focusing solely upon legal rules
blinds us from recognition of the teleology of law and its ultimate purpose.
IV. Morality and Interpretation
We have established a concept of law with dignity at its core, defined as
respect for humanity’s capacity to strive towards human goods. From this,
societies chart a general territory of moral principles, which will guide their
political virtues and shape their legal systems. It should be noted that there are
many legal systems today that do not adequately reflect the inherent dignity of
human beings. These systems are deficient. It is also true that while a system on
the whole might satisfy and reproduce moral contents, there will inevitably be
statutes within every system that are unjust. These are subject to change.
In the United States alone, there have been major legal upheavals followed by
periods of profound legal change. We can recall the massive protests of black
Americans in the 1960s in the South. The state governments who presided over
this oppression were only able to maintain the status quo by the most severe
means of repression. In that time, we could say that these systems were extremely
deficient, borderline lawless. If, in a system, there is no recourse to mend unjust
statutes, even incrementally over time, then we need not compare those apples to
32
oranges. These kinds of authoritarian governments just truly are the gunman
situation writ large. As such, systems, rules, and conventions will also change
over time, but in a system with dignity at its core, time has proven that the arc of
history will bend toward progress.
What this means for the practitioner of law in a country like our own, is that
any kind of judicial interpretation will implicitly involve moral interpretation. In
fact, we can show what moral principles bring to bear in legal decision making by
charting the occasions of interpretation in steps, as legal scholars like Richard
Fallon have done. It is not our intention to proffer or endorse a particular
interpretive method but merely to show what Fallon has called “the irreducible
role of values and judgment” even in disparate methods of interpretation.
Although he directs his evaluation at two methods that pay particular lip service
to separating judicial decision making from ethics or moral judgment, we can use
them to sketch the minimal role that principles play in any interpretive method.
(i) Occasions for Moral Judgment in Legal Interpretation
Fallon marks the first occasion for judgment, defined here as bringing values
to bear in a decision, at the “interpretive dissonance” of first-blush readings of a
statute. This involves asking a question like, “Does the meaning of this statute
reflect something that a reasonable legislature would direct?” For example, the
interpreter might find the unintended results of the statute to be so immoral or
absurd as to warrant a correction or an exemption. This process involves first,
accessing one’s personal values to determine what a reasonable legislature would
enact. The history of the Supreme Court is rife with disparate conceptions of what
33
a “reasonable” legislature means and how it should function. There was, for
instance, considerable interpretive dissonance in the decision of Riggs v. Palmer,
the case deciding whether a man could lawfully receive the inheritance from his
grandfather whom he had murdered. Surprisingly, there was disagreement on the
bench.
The Opinion found the result of the statute, which allowed Palmer to keep the
money, even as he was charged for murder, to be so hideous that they changed the
application of the statute. The outcome simply did not fit what they determined
would come from a reasonable legislature. To make that judgment, they accessed
particular moral principles, one of which has been enshrined in common law
since: “One cannot benefit from one’s wrongdoings.”
The second occasion for judgment in interpretation comes with resolving the
uncertainties that interpretive dissonance creates. When faced with ambiguity,
judges of all methods call upon other resources to contextualize or illuminate a
decision. There is wide latitude, however, in how broadly they define that context.
Some judges deride any resource beyond the plain meaning of the text as “extra-
legal,” and irrelevant. Some, like the pragmatists, have a very loose definition of
context that may include sources beyond the text, convention, or precedent. The
reality is that there is no hard and fast rule by which we can draw that border.
How narrowly or broadly it is drawn will inevitably be the product of judgments
of political morality about relevant sources of law, policy purposes, and the
standard of rationality that they ascribe to the legislature. What is sure is that this
breadth of context serves a vital role in judgment and is yet another way that we
34
could draw a direct line from the political morality of the interpreter to the
judgment.
The third occasion for interpretation, and the most abstract, occurs when the
interpreter must determine the root meaning of “reasonableness.” This is not
merely conjecture on what a reasonable legislature might have intended in
drafting a statute, but establishing what a reasonable interpreter might glean to be
the most credible interpretation based upon the breadth of the context. As many
judges intend, or pay lip service to, the impartiality of judgment, they will form a
construct of what a reasonable interpreter should be as a duty bound emissary of
the rule of law. Even this construct will “inevitably reflect judgments about what
would be morally, politically, and practically provident or improvident.”20
This stage, even more than the others, will access particular moral principles,
which trace back to the universal values that inform both our morality and our
laws. In this way, we can see how the interpreter begins with the particulars of a
statute, winding back into moral principle, and then universal value judgments,
and finally into the natural moral contents at the heart of the system. These stages
present only the minimal occasions where interpreters access particular moral
principles. To render decisions in hard case, practitioners of all legal methods
must reach into the realm of moral principles. We still have much to say for
principles in law, and as we shall see, the moral principle will show itself to be as
important and foundational in a legal system as the rule.
20
Richard H. Fallon Jr.,Three Symmetries between Textualist and Purposivist Theories of Statutory Interpretation - and the Irreducible Roles of Values and Judgment within Both, 99 Cornell L. Rev. 685 (2014), 12.
35
(ii) Principles & The Model of Rules
No discussion of Hart’s positivism would be complete with also discussing his
lifelong theoretical adversary, Ronald Dworkin. Dworkin wrote extensively about
the ways that principles affect legal rights and obligations. As we have done in
this thesis, he expressed skepticism of the Positivist assumption that rules alone
are the coercive currency of Law. The criticisms we have raised above of Hart’s
model of rules, the distinction of primary and secondary rules, and the rule of
recognition bolster and give credence to this use of standards beyond rules in
interpretation. The model of principles exemplified in his work is well suited to
our system of Natural Law. Here, the concept of the principle will serve as a
strong starting point for our examination of how morality operates practically in
jurisprudence.
Dworkin generally defines principles as the “whole set of [these] standards
other than rules […] that is a requirement of justice or fairness or some other
dimension of morality.”21
For our purposes, we need not change this definition
very much. We shall define them as the standards of morality derived from the
universal value judgments of which all human beings share a capacity. This
modest shift from Dworkin’s general definition will not profoundly change the
function of principles, but it will carry implications for their source, which we
will explore below.
Examples of principles are ubiquitous in legal history; we have already seen
the one used in deciding Riggs v. Palmer. As we have shown that any method of
interpretation worth its weight must make at least minimal use of moral
21
Dworkin, Ronald M., The Model of Rules (1967). Faculty Scholarship Series. Paper 3609, 22-23.
36
principles, we shall now explore the differences between principles and rules, the
vital function that they serve, and how they fit within our framework of the
natural content of Law driven by human dignity.
First, the function of principles and of rules often overlaps. They may be used
concurrently, and frequently are, to justify decisions. As Dworkin writes, “Both
sets of standards point to particular decisions about legal obligation in particular
circumstances, but they differ in the character of the direction they give.”22
They
differ crucially in the following respect. Where the rule is applicable “in an all or
nothing fashion,”23
the application of the principle is nuanced and variable. Rules
are either valid or invalid, meaning that if the facts specified in the rule are
satisfied, then it applies. There is no room in the application of the rule for
exception or modification unless explicitly enumerated within the language of the
rule. Principles, on the other hand, are neither valid nor invalid and do not
automatically bring about certain consequences when they are respected or
broken. As Dworkin demonstrates with the principle listed above, that “one
should not profit from one’s own wrongs,” there are many legal avenues by which
one actually can profit from one’s own wrongs. However, this does not eliminate
the principle as logically invalid, because principles are not necessitated by facts.
Rather, they are complex products of moral arithmetic that guide an interpreter’s
approach to a particular set of facts.
The hierarchy of rules is also much easier to determine. For example, there are
some rules that are functionally more significant than others. The legal rule in the
22
Dworkin, The Model of Rules, 25 23
Ibid., 25-26.
37
United States that the statutes are drafted and enacted by the legislature is more
fundamental than more specific rules on Senate term limits, for example. The first
rule could not be changed without fundamentally changing the entire system.
Principles, however, do not abide by this kind of functional hierarchy. We might
say that the loftiest principles enshrined in the Constitution are more vital to the
legal system than the principle used in Riggs v. Palmer, but there is no logically
necessitated hierarchy among them. Where two or more principles converge, it is
to the discretion of the interpreter to decide which is “weightier.”24
This judgment
is relative not only to the facts of a given situation but also to the political
morality of the interpreter. It is also evident that many rules contain principled
language, so that although they function logically as rules, they may be applied in
a way that invokes principles. Some such embedded words of principle are “fair”,
“reasonable”, and “just.” Deciding the precise meaning of these words in statutes
necessitates occasions for moral interpretation, where there is likely to be
interpretive dissonance. This is where particular principles of political morality
will be deployed to find reasonable definitions.
As Dworkin illustrates, denying the vital place of the moral principle in
judicial decision-making, as positivism has done, makes the decision in Riggs v.
Palmer more than wrong; it would render the decision legally invalid. Depriving
Palmer of the inheritance is retroactively stripping him of his property. Under
Hart’s model, because the Opinion does not base its verdict in an accepted
standard of validity, it is therefore operating extra-legally. What was required in
Riggs v. Palmer to render a decision that would be by any account just,
24
Dworkin, The Model of Rules, 27.
38
reasonable, and befitting of the dignity of those forced to bear it, was the moral
principle.
(iii) The Source of Principles
As we mentioned previously, the system that we have proffered designates the
source of these principles in the inherent dignity of human life. This reveals yet
another essential character of principles. Because they derive from the basic value
judgments that inform the natural contents of Law, they fundamentally precede
rules. To explain, we will refer again to Scott Shapiro’s language of planning.
We have designated that dignity is the primary motivator for the master plan
of law. The sub-plans that immediately precede this general master rule, which we
have dubbed the teleology of Law, will inevitably be more akin to principles than
to rules. For example, from the general value judgment of respect for human life
there is borne the principle that killing is wrong, unless necessity demands it in
defense of life or property. Of course, it was likely never codified in such a
legalistic way, but this is generally what is meant by “Thou shall not kill.” This
principle was then manifested into a rule, where a list of exemptions was
acknowledged and the specific prohibition on murder was sanctioned.
First, there was the value judgment, then the general moral principle, and,
only when given authoritative force, was there then a rule. We should note that
Hart himself acknowledged this precedence of moral principles. In his model,
primary moral rules, which are general moral principles, transform into legal rules
once they are validated by a rule of recognition. According to Hart, this is the
transition from pre-legal to legal society. He simply ignores their ongoing
39
influence in legal planning thereafter. Nevertheless, any legal proposition is a sub-
plan of those that came before it. They hearken to the chain of sub-plans that
inevitably lead us back to moral principles. In turn, these lead us to the master
plan, the teleology of the legal system and the universal human values on which it
rests. Thus, we have arrived at yet another way that Law and morality are
inextricably linked. If the legal system is morally aimed, if it springs from the
same natural human conditions that form morality, and if it is preceded and then
shaped in practice by moral principles, then we cannot deny that the two
phenomena are inseparable.
To conclude this discussion of principles, we will examine precisely what
a natural law concept based in dignity means for the humble practitioner of law,
for those who interpret it. On the interpretive stage, our framework is an
essentially purposive one. It acknowledges that there is an essential character to
the legal system composing the “spirit” of laws. When we view legality beyond
manifested social fact and we re-incorporate moral facts, the spirit of the law
naturally takes a more important interpretive role in evaluating statutes. As we
have seen, calculating exactly what the spirit of a statute is will inevitably involve
bringing values to bear in determining what is reasonable in light of our system’s
over-arching purposes. In a system motivated by dignity, this would be a two-fold
determination.
The interpreter must delimit what is reasonable for a functioning legal system
to do in light of its underlying moral ends, which we have offered generally under
the aegis of human dignity and defined particularly as bringing about conditions
40
that allow its subjects to strive after human goods. This will involve measuring up
the content of a given statute in both a broad and narrow sense. Broadly, the
interpreter must determine if the forbearances within the given statute are
befitting of the teleology of the system, if the statute restricts a population’s
ability to strive after human goods, if it is repressive, or if it is justifiable within
the moral schema of the system. Of course, not all statutes will positively
reinforce human dignity. For instance, statutes that determine traffic rules will not
directly influence a population’s ability to pursue human goods, but at the very
least, arbitrary statutes of this kind must not be found to detract from that
capacity.
The broad view will also inevitably involve thinking in terms of reciprocity
and tacit limitations on authoritative power. An interpreter must ask questions
like, “Do the forbearances within a statute generally fit with what the population
is willing to be subjected to?” “Does it minimally respect its way of life, its civic
institutions, and does it treat it as more than means to a political end?”
Narrow evaluations of statutes will be reliant on the particular political
morality of the interpreter and their system. Here, the interpreter will summon
particular moral principles to determine the spirit of the statute itself, recognizing
that each proposition of law is a sub-plan of those that come before it and that this
chain of legal planning inevitably leads to the teleology of the system as a whole.
This means that the over-arching purpose of law is contained within every single
proposition of law within the system. This is more than an endorsement of
purposive interpretation. Rather, I am proposing that it is a fundamental feature of
41
the legal system. To form new propositions of law, for the legal system to persist,
we are required to measure those new propositions to its fundamental, underlying
purpose. If that purpose is, as we have seen, an ultimately moral one, then it is
only through principles and moral calculation that we may do so. We arrive then,
at the all-important function of the principle, as the component of our legal system
that allows it to persist, to change, and to strive towards an ever-brighter ideal,
towards dignity.
V. Conclusion
We have used the general framework presented by H.L.A. Hart in The
Concept of Law as a springboard to proffer a new system of natural law. As we
have shown, moral facts pervade our understanding of the legal system, and the
positivist conception cannot hope to explain them. The framework that we have
sketched here, through analysis of Hart’s concept, rests on a broadened notion of
the minimal natural contents of law. We have introduced a new way of framing
the question that plagues the concept of law. We have chosen to ask, “What does
law aspire to be?” rather than “What is law?” This has enabled us to examine
moral facts within the system, vital as they are, in a new and informative light.
Where Hart bases his concept of natural content solely in the proposition that
human beings desire to survive, we have based ours on the seemingly non-
controversial proposition that human beings, in fact, desire much more than
survival. Our biology has enabled us to communicate, to form friendships, to
make art, and to propagate knowledge. No matter the particular political morality,
these human judgments indelibly inform the over-arching aim of any legal
42
system. The teleology of the legal system is then to service human dignity, to
create conditions where human beings can strive after these kinds of goods that
are common to our species. This is a uniquely human enterprise and a product of
intellectual creativity. At its root, this is what law aspires to do.
As we have seen, law is neither an all-or-nothing proposition of social fact nor
a political accident. It is a construction closely tied, and bound by, the natural
conditions of human dignity. When laws respect that dignity, they are successful.
When they do not, the system can only survive by violence and suppression. We
have characterized this, under the framework, as lawlessness.
Further, we have found that the principles that guide and shape our system are
just as important as the rules codified within it. These inform and direct the moral
aim of the system. They demand that, in hard cases, we do not forget that law
reproduces and satisfies certain standards of morality, and they remind us of the
inherent moral character of the legal system. The implications of adopting such a
view, of viewing legality as an aspiration of the legal system rather than a logical
quality, are wide and far-reaching.
Hart decried the dangers of allowing moral deliberations to seep into the
conversation of what constitutes law, calling something like the system I propose
a “narrow” concept of law. In reality, this system is anything but narrow. It does
not entrap its practitioners into a limited view of what is legally possible.
Encouraging the deployment of moral principles in jurisprudence frees law’s
practitioners from the familiar failures of mechanical interpretation. When we
freely acknowledge the moral contents of statutes, we are better poised to
43
recognize the possible morally iniquitous demands hidden within them. If,
however, we shield moral propositions with real moral consequences in legalistic
language and semantics, we are less likely to do the due diligence in ensuring that
they are the right moral propositions.
In fact, the natural foundation we have laid, with human dignity at its core,
leaves a vast array of possible legal propositions open for enactment in the future.
Which ones we choose to give the force of law will be a matter of political and
philosophical debate. Our framework simply demands that whenever we bring a
proposition of law to debate, that we remember what it is we are doing as its
practitioners, that wherever social control is involved, we are always studying its
abuse, and that we constantly aspire towards a greater degree of legality.
44
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